THE COURTS.

New Zealand Mail, Issue 1095, 24 February 1893, Page 29

THE COURTS.

SUPREME COURT. CIVIL SITTINGS. In the Supreme Court on Monday morning Mr Justice Richmond was asked by Mr Quick to fix a day for the hearing of the case of Andrew v. Smith, in which Mr Bunny, and Mr Andrew are engaged. The action is an appeal from a decision of Colonel Roberts (R.M. of the Wairarapa) re the Rabbit Act, and Mr Quick pointed out that it was desirable, if possible, that the casb should be heard soon, inasmuch as other cases depended upon the result of it. His Honor said it .was a banco case, and he had not yet seen it. If without disarranging the rota already drawn up he could find an early date for setting it down, ho would do so. Mr Justice Richmond was engaged on Tuesday in hearing an action brought by F. W. B. Greville to recover from Alex. Black (proprietor of the Pahialua Star) L2OO damages for alleged breach of agreement. Mr Edwards appeared for the plaintiff, and Mr Chapman (instructed by Mr Tosswill) for the defendant. The plaintiff’s statement of claim set out that on the 26th October, 1891, he resigned the position of travelling correspondent for the New Zealand Times and New Zealand Mail at L 3 10s a week, with travelling expenses, and entered into an agreement with defendant to act as editor of his paper at L 3 a week for a year, during which time he was to have the option of electing to join him in partnership upon payment of LIOO by P.N.’s at eight quarterly intervals without interest. He was also to have half share of the plant and machinery by paying LSO extra. On the Bth October, 1892,. he notified defendant of his desire to enter into partnership relations, but defendant ab olutely refused to carry out his. part of the contract, and gave plaintiff notice of his intention to determine the engagement at the end of the period contracted for. The defendant pleaded that he was induced to enter into the agreement above referred to by misrepresentation on plaintiff’s part, that he had taken up land, insurance and commission agencies to the neglect of his journalistic duties, and that he had shown incompetency in his work. Plaintiff gave evidence in support of his own case, and defendant, F. G. Moore, compositor, George Moore, clerk, (both in defendant’s employ), and Arthur .Vile, journalist, of Masterton, were examined for the defence. At 5 p.m. the further hearing was adjourned till Wednesday morning. On the case being resumed the defendant was crossexamined at considerable length, and then W. F. Roydhouse (until lately Bub-editor of the Evening Press), R. P. Greville (brother of the plaintiff) and E. A. Haggen (editor of the Woodville Examiner) were called by plaintiff s counsel, and gave evidence. Mr Edwardß (for plaintiff) and Mr Chapman (for defendant) then addressed the Court. His Honor reserved judgment. Thursday, February 16. (Before His Honor the Chief Justioe.) Colonial Bank v. Mrs Frances Rossiter Macdonald. —Action upon certain covenants to recover £4500 and Interest at 7 per cent from 15th August, 1899. Mr Edwards appeared for the plaintiff bank, and Messrs Hutchison and Jellicoe for the defendant. Mr Edwards understood that the evidence in this oase and in the Colonial Bank v Macdonald and another was to be taken together. Mr Jelllooe had said so in Chambers. Mr Jelliooe : I never said anything of the sort. T , , Mr Edwards: At any rate I understood so. After some further reference to this matter and to a oounter claim, Mr Edwards proceeded to open the case. He said this was an action in whioh the plaintiff bank sued the defendant, who was a married woman possessing property in her own right, upon two covenants entered into by her with the plaintiff bank in respect of advances made by the bank to herself. A covenant was entered into on the 15th August, 1890, by virtue of which the bank advanoed defendant £4SGO on the seourity of certain property, defendant undertaking to pay interest at the rate of 7 per cent, payable half • yearly. Default was made in the payment of interest. As a matter of fact defendant had never paid Interest at any time, The mortgage was made payable upon demand, and upon the 15th August, 1892, a demand was duly made by the plaintiff bank upou the defendant for payment of the money, principal and interest, the interest then due amounting to £631 7s. These amounts were not paid, nor any part of them, and they still remained unpaid. The plaintiff bank therefore claimed tff recover £4500 for principal, £631 7s Id for interest to August 15th, 1892, and interest on £4500 at 7 per cent ftom the latter date to the date on which judgment shall be entered, and the coßts of the action. Mr Edwards conoluded by saying that he proposed to prove the covenant, to prove the existence of separate property belonging to the defendant both before and at the time of the making of the oovenant, and then to ask His Honor for judgment. The defendant by her statement of defence denied that she had covenanted with the plaintiff bank as alleged. The plaintiff corporation, by the Colonial Bank of New Zealand Act, 1874, was * only authorised to carry on in the Colony of New Zpaland all Buoh business as is usual or lawful for establishments carrying on banking, except the taking as collateral security for aDy advanoes of money made by the plaintiff or any money due to the plaintiff any lands, houses or other real or personal property, and the deed and instrument of mortgage respectively In the said paragraphs mentioned are ultra vires the powers conferred by the said Statute upon the plaintiff corporation and are void and of none effect.’ As a second defence, the defendant pleaded (2) that if the alleged oovenant were proved the plaintiff contemporaneously agreed by writing that the said deed and memorandum of mortgage (if any) were executed on the express condition that the moneys covenanted to be paid should not become due and payable, and that the plaintiff should not take any steps to realise the amount thereby necurecl for a period of two years,

I from the 15th August, 1891, and that she executed the deed and memorandum of mortgage (if any) upon the terms that her contract or oovenant with the plaintiff should not bind or render liable any of her separate property other than the lands and hereditaments comprised in the said instruments of mortgage (if any). (3) At the time of the making the oovenant (if any) she was the wife of Thos. Kennedy Macdonald. (4) She denies she made default in the performance of any oovenant on her part m the said deed contained or in the payment of interest, and she said that plaintiff, on August 15th, 1892, entered into possession of the properties comprised in the said deed (if any), and has since received the rents and profits of the same. (5) That the plaintiff had also taken possession of the following articles of furniture in Inverloohy House Complete sot of Venetian blinds and fixings in all the rooms, value L4O ; throe plate glass mirrors, 12ft high, value £100; out glass chandelier and braokets, with electro-plate fittings and Christiana burners to match, value £ls; exhibition bronze chandelier, with figures in relief and four braokets to match, admittedly the finest drawing room chandelier in the oity, value £6O } washhandsta; d and marble basin in ground floor bedroom, value £7 ; gas stove in Bcullery, value £5 10a ; ironing stove in laundry, value 355; complete set of iron and steel stable fittings, with automatic water and feed supply, screwed through stall and loose box, value £IOO ; water tank and stand, value £5 15s ; two fountains, six vases in grounds nod fixings, value £l5O —of the total value of £485 at the least. G. That the plaintiff had reoelved divers sums of money in respeot of the rents and profits of the eaid several properties. 7. That if the plaintiff on the 15th August, 1892, made the demand alleged by him, and whioh she denied, the plaintiff did so in breioh of the agreement mentioned in paragraph two. 8. She speclficially denied the other aots.of default alleged. 9. During the time plains tiff bank had been in possession of Inverloohy House, it had been guilty of the following acts of wilful default:—(a) It has failed to take any steps to let this house, and (b) it has refused to aooept sufficient tenants who would have given a sufficient raok rental for It. 10. The defendant submitted that any decree of judgment to be made herein ought to direot that an account be taken of what plaintiff had received, or which, but for its wilful negleot or default might have been so reoeived. 11, Save as herein admitted, the defendant specifically denied all the allegations contained in plaintiffs statement of claim. By counterclaim, the defendant Baid (1) that on or before 15th August, 1892, she was seized in fee and in possession of the several proper, ties described in schedule attaohed ; (2) that on this date plaintiff wrongfully took possession of the said several premises, wherefore the defendant counter-claimed (a) possession of the premises, and (b) the mesne profits from 15th August, 1892. Robt. Orr, olerk in the office of Messrs Travers and Wflford, was the first witness called. He stated that in 1887 he was managing olerk for Mr Travers when that gentleman acted as solioitor in respect of certain Instruments drawn up between the plaintiff bank and defendant. Witness then identified his attestation to the deed of the 15th August, 1890. It was a mortgage of property in Churoh street, Wellington, and of part of the property on whioh Inverloohy House stands. The deed was exei outed in his presence, as was also a conveyance dated the 24th August, 1892 (produced). Mr Travers was at that time still acting for Mrs Maodonald, and he perused the deed on her behalf. The former deed was perused on her behalf either by Mr Travers or by witness himself. A memo, of transfer (produoed) from Mrs Maodonald to the bank, In respeot of Inverloohy House, and dated 15th August, 1890, was also executed In his presence. Mr Edwards asked if defendant’s counsel would admit that sho was seizsd of this property at the time she mortgaged it. Mr Jelliooe did not feel called upon to make any admissions. His learned friend had refused an application of his.

Mr Edwards said that was in a different matter. His learned friend need not be under the delusion that he was not prepared to prove everything. But the refusal to admit facts of the kind in question would merely tend to protract the oase, and increase the expense.

William Halse, aooonntant in the A.M.P. Society's office, produoed original notice of assignment from T. K. Maodonald to his wife, Frances Rossiter Maodonald (the present defendant) with acknowledgment attached, and polioy of insurance taken out In 1873 on T. K. Macdonald’s life and mortgage thereon, dated Ist August, 1892. Witness said the polioy of insurance had not been surrendered, but was held as seourity under the mortgage. It had a valne in excess of the mortgage. By Mr Hutohison : The Sooiety lent up to 90 per oent of the surrender value of a policy. The value of this policy would bo a matter of calculation. The Registrar, in response to notioe, produced a bill of sale, dated 29th October, 1874, between Thos. K. Maodonald and Franoeß R. Macdonald. It had been filed as attached to another document. Mr Jelliooe wished it noted in evidenoe that T. K. Maodonald was adjudicated a bankrupt on 3rd December, 1891, and reoeived his discharge on 3rd Marob, 1892, Robert Orr (re called) swore to the execution of the bill of Bale just prodnoed by the Registrar. He said it oame to be in the possession of the Court because it was filed with a subsequent deed. Other documents were in turn proved by the witness. Cross-examined by Mr Jelliooe : Up to and after the date of Mr Maodonald’s bankruptcy Mr and Mrs Maodonald were living at Invorlochy House, and the furniture was there.

Edward Jervis Reid, manager of the Colonial Bank in Wellington for eight years past, deposed that he remembered making an advance of £4500 to Mrs Macdonald on behalf of the bank. Verbal application was made for an advance for £4OOO, and it was subsequently agreed that £4sooshould be lent, and certain mortgages wero taken as security,

one cheque being given for the mortgage money. The cheque was drawn by defen. dant, and paid into her husband’s special account in the bank. It was dated 15th August, 1890. That money up to the commencement of this notion had not been paid, nor any part of it, nor bad any interest been paid upon it. After the advance was made, witness was absent from the Colony on leave for about nine months. On 29th June, 1892, he made a formal demand for payment of £476 7s 4d, being the amount of overdue interest. He had two oonveraationß with Mrs Macdonald just previously about non payment of the interest, and he told her if the interest was paid regularly they would give her furthor time to pay the prinoipal. She replied she had no means of paying the interest. The written demand produced no response. Mr Edwards said he had served the other aide with notice to produce this dooument, but It was not forthcoming. He would therefore have to subpoena four or five witnesses to prove it. They had been unable to serve Mrs Macdonald, who would seem to be concealed. They had been looking for her the whole of the previous day, and also the day before that, Mr Jellicoe stated that on both days Mrs Macdonald was at her homo.

Mr Edwards replied that that might be, but, of courso, they could not break open the lady’s house in order to effect servloe. Mr Reid’s examination resumed : On the afternoon of the 15th August, 1892, he reoeived the following letter from Mrs Mao donald :

* Wellington, • 15th August, 1892.

* Dear Sir, —As I advised you eome time ago was my intention I have this dayj}lven up possession of Inverloohy Houso andjhe property in Boulcott street which you hold under mortgage for £4500. When I executed to the bank the mortgage over those properties I did so very reluotantly, and then only at the special request of yourself, and with the understanding and full belief that my doing so would relieve my husband from all financial embarraisment alike as to your bank and other creditors. That belief proved entirely fallacious, and the only effeot of my action has been to deprive me of the whole of my property. Negotiations as you are aware have been for some time pending with Mr Ross, of Sargood, Son aud Co., for the purchase or lease of Inverloohy House ; but with his knowledge that the bank were the virtual owners of the property, and a statement said to have been made by yourself that a rental of £l5O would be taken, no business has resulted, for such a rental, as yon mast know, is an ab. surdity. Mr Rosa has privately admitted to his personal friends that it is the only property in or about Wellington or its suburbs likely to suit him, and this ho ha 3 said alter months of enquiry. You will find npon examination that Inverloohy House and grounds have been left ia perfect order. Although a large sum was offered for the plate glass mirrors in the drawingroom, the exhibition chandelier in the diningroom, and other specialities, they have not been disturbed, and the houso is ready for immediate oooupatlon. No more complete family residence and grounds exist in the oity or district. The tenants in Bouloott stroet have reoeived notice to pay their rents in futnre to the Colonial Bank. 1 need hardly say that I deeply regret having to leave the property, and to part with all that it has been a delight to oreate there during the past 15 years ; but it is impossible for mo to remain without means to keep up the property or to find a purchaser, with the knowledge that exists amongst probable buyers that the bank are sure to roalise upon their sscurity, and that they have only to wait and they will get it far cheaper from the bank than from me. lam prepared to sign any transfer of the property whioh you may deem necessary either to the bank or others, and in any way to assist the bank to realise the securities. I enclose the key of tho front door of Inverloohy House, also a complete li»t of the tenants in Bouloott street, etc.—l am, etc., F. R, Macdonald. E. J. Reid, Esq., Manager Colonial Bauk of New Zealand, Wellington.’ He went through Inverloohy House, Mr Maodonald showing him everything, including furniture. He was also present at the auction sale in June, 1892. The furnishing of the house was substantially the Bame on both oooasions, At the time the mortgage was being prepared it was agreed to give defendant two years in whioh to repay the loan. The mortgage, aocordiug to bank custom, was made payable on demand.

By Mr Jelliooe : No written demand was made upon defendant prior to the auction sale. Verbal demand had been made after the auction sale was advertised. Since he had placed a caretaker in Inver* lochy House he had not played lawn tennis there on Sundays. He had given several persons permission to go there to play lawn tennis. He would not bo surprised to hear that officers of the bank aud their friends had been regularly playing lawu tennis there on Saturdays and Sundays. There was a choice flower garden attaohed to the house, but he bad not used it for the purpose of presenting bouquets to his friends. Mr Jelliooe : May I suggest that these are reasons why you have not been anxious to let the house.

Witness; You may If you like. £53 had been received in rentals from the Church street properties. The rents would be £125 a year dear. The witness took a note of oertain letters whioh Mr Jelliooe required him to produce, and for the prodaotiou of whioh Mr Jelliooe said he would apply to the Court in Chambers if necessary. The witness was crossexamined at considerable length.

Re examined: When he was shown over Inverloohy Houso and grounds he under, stood that the lawn tennis ground was part of the latter, but when he came to realise he found it was only leasehold. The rent aooount, with repairs that had been forced upon them, showed a debit of £29, not including rates for the past year. These would amount to something like £4O. Oswald C. Watkins, accountant at the Colonial Bank, deposed that defendant had paid off no part of the advance of £4250, nor any of tho interest thereon* Tho amount

(principal and interest) due on August 15, 1892, was £5267 14s 3d. He wrote the formal demand upon defendant for payment and tho manager signed it. Mr Edwards at this stage asked defendant’s counsel if they were going to produce tho original of this letter. Mr Jollicoe said it was not procurable ; he had searched for it, and oould not find it. At tho same time, ho questioned his learned friend’s right to serve a subpeena upon hitu as he had done that morning. Mr Edwards replied that they had not been able to eerve defendant herself. They were told yesterday she had gone fora drive to Island Bay, aud no doubt had they gone there, they would have been informed she had changed her mind and gone to tho Hutt or somewhere else.

Under examination, the witness admitted he might have made a mistake as to the Interest due on 15th August, 1892. He had made it out as £631 7a. It might be £630 17s 2d.

Martin Chapman, partner in the firm of Chapman and Fitzgerald, solicitors to the plaintiff bank, gave evidence as to serving defendant’s solicitor to produce all documents concerned in this oaBO, He also sent the draft conditions of sale at Inverloohy House, and produced a reply from Mr Jelliooe stating that bis client had no objection to them. At the time Inverloohy House was handed over to the bank the sub-lease from Mr Plimmer of the lawn tennis was forfeitable by him for nonpayment of rant. Chas. Christta Graham, Offiioial Assignee, was nailed on to produce notes of evidenoe given by Mrs Maodonald. Mr Jellicoe submitted that tho examination in question was illegal, and that the evidence was taken by compulsion, whioh was also illegal, His Honor considered that tho value of the objeotion depended upon the oironmstances in whioh the evidenoe was taken.

The witness then produoed Mrs Mao donald’s evidenoe taken on the 25th October last.

Under cross-examination, he admitted It was taken under compulsion. He admitted that ha had summoned her under section 299 of the Bankruptcy Aot for the purpose of giving information respecting her busband, his trade dealings and property. Mr Hlalop appeared for witness to oouduot the examination, and Mr Ed wards also claimed to watch the proaeedings on behalf of the bank. At the outset Mrs Macdonald protested against being examined in the abaenoe of her oounsel. Witness advised her to submit to examination, and promised to see no improper questions were put to her. Thereupon she gave evidenoe. Mr Edwards’ examination was in no way material to the enquiry that she had been summoned to attend, and as soon aßhe Baw it was Irrelevant he interfered to stop it. He would have interfered earlier if he had notioed it was a fishing examination. Mr Jelliooe thereupon claimed that Mrs Macdonald’s examination was illegal on the ground of public polioy, and asked His Honor to take a note of the objeotion. His Honor said he would hear argument upon this point hereafter, and if the evl. denoe was found to be inadmissible he would strike it out.

Plaintiff’s caso having closed, Mr Hutchison urged three objections to the claim : -(1) That tho demand sent by Mr Reid to Mrs Maodonald on the 15th August, 1892, is not such a demaud as is required by the mortgage road in oonj inotion with the undertaking in the letter, because two yoara had not elapsed from the time the advance was made; (2) that tho demand was in exoesa of the amount dus and secured ; (3) that the contract of mortgage wai illegal, bauka being preoluded from taking real property as security for advances.

The Court then adjourned till next morning.

Friday, February 17, Tho Court resumed at 10 o’clock on Friday morning. Mr Hutohison spoke till 12.30 p.m. In support of the objeotions he bad taken the previous afternoon to the plaintiff’s case. His Honor decided to hear evidenoe for the defence.

Edward Richmond Glegg, manager of the National Bank at Wellington, was the first witness called by the defence. He deposed that he was fully conversant with the practice in banking operations. Mr Hutchison : Assuming that a bank, or a person executing a mortgage, advanoes to the mortgagor the Bum mentioned in the mortgage, their being no prior or subsequent transaction between the mortgagor and the mortgagee, would that, In your opinion, fall within the ordinary and legitimate purpose of the operations of bankingeatablishments ? —I should say suoh a transaction would not fall within the ordinary transactions of banking establishments. I oould not say as to its being legitimate. You could not say whether that would come within the scope of the legitimate operations of a bank?—No, I oanuot say, What is your reason for saying that ?—I have never transacted snob a case.

It might also depend upou the business that the baak was empowered in its charter to transact or in the Statute defining the business of that particular bank ? No donbt.

Mr Edwards : Assuming that you had a customer who was heavily indebted to your bank, and whom you wished to pull through. You understand what I mean ? Ido.

Assuming that you had £BSO worth of past due bills—that is, dishonoured bills - of this oastomer, which you did not exactly see your way to realising, and assuming that that customer had a wealthy wifo possessed of property, and that she was bringing mortgages to your bank to secure a aura to be applied partly for the payment of your past duo bills and partly for the general purposes of your customer, including the bank debts you wero interested ia, would you not consider it a legitimate banfeiug transaction to take a mortgage from the wife to secure such a sum ? Yes, not to seoure one particular sum, bat to secure the account of these advances you mentioned.

But why, Mr Glegg ?~Because it would not bo an ordinary banking transaction, and wonld be risky. To His Honor—lt would not be customary nnlesß it were done to secure that part of the general advanoes.

His Honor: If it was the case of a oastomer who wanted support by placing money wlthiu his own oontrol ? We would get better ideas if you tell us what is improper in the oiroumstanoes anl outside the course of ordinary banking.—The usual oustom would be to take it on a guarantee bond to cover general advances up to tha specified amount.

Mr Edwards : You would not take it in the form of a guarantee bond from the lady —you would roquire something else ?—I would require a mortgage as well.

Then it is not the substance of the transaction you object to, but the form of it? Yes, the form.

Re-examined : I understood you to say the mortgage would be in addition to tho guarantee bond ?—Yes, deoidedly so.

Now, as to the mortgage, would it bo for a fixed amount or a liquid and uncertain amount ? Both these cases would be for a fixed and limited amount, I should say. A banker has always the question of limit in his mind.

In what sense a certain amount? —lt might be for a certain amount or general advances not exceeding a certain amount. In the case of it being a certain amount, do you contemplate one amount?—No. We will suppose that the husband is a customer of the bank, whioh husband has become involved with the bank ; that his wife has property in her own right and that she is willing to assist her husband, would you consider it within the ordinary and legitimate purposes of banking to lend that wife £4500 upon her exeeuting a mortgage to the bank over her property for a speoifio amount, there being no transaction between that wife and the bank exoept that? —I oould give no opinion as to the legitimacy of it. Well, ordinarily ?—No.

Chas. Trlnghnm, an arohiteot, praotising in Wellington, deposed that for a quarter of a century tie had been accustomed to value property in Wellington. He knew Inverloohy House. The first time he went on the property was at the auotion sale in Jane last. In his opinion the fair letting value of it would be £309 a year at the least. Cross-examined : The house was really worth £SOO a year. The diffioulty was to get a tenant willing to pay what the house was roally worth. Mr Eiwarda having-obtained leave to call rebutting evidence. Peter Parfitt, manager of the Bank of New Zealand in Wellington, deposed he had had banking experience both in Australia and New Zealand.

Mr Edwards: Assuming you had £BSO of past due bills from A customer, and assuming that the oastomer was otherwise involved with his creditors and with your bank, and that you wished to carry him through, and assuming also that this customer had a wife possessed of property whioh she was willing to mortgage In order to seonre £4590 to be applied partly to taking up bills held by you, and partly for tho assist race of your customer’s business, would you consider it a proper and legitimate backing transaction to advance to her on the security of her property the sum d«* sir>d for those purposes ?—Assuming the £BSO of the advance was to pay the bills held by us, and that the rest was for the assistance of the customer, I would say it was customary. If the letter from Mr Reid to the general manager of the Colonial Bank ia Dunedin contains a true statement of the transaction, would you regard an advance made under the circumstances therein set forth an ordinary banking transaction ?—Yes. Edward Jervis Reid (recalled) deposed that he had banking experience in London, China and India, in the Oriental Bank. He considered the advance made to Mrs Maodonald an ordinary banking transaction.

Cross examined by Mr Jeliicos : The bank was in possession of Inverloohy House since ths sale of 25th January. He believed the legal position wa3 that the baak was owner of the honse. It had been in the hands of two or three house agents, aud he had made do change since the sale of the 25th January. He had mentioned it to Biker Bros., and possibly a houso advertised In their list of properties referred to Inverloohy House. He did not mention auy rent to Baker Bros.

Charles Edward Baker, of the firm of Baker Bros., house agents (oalled by Mr Edwards), did not think Inverloohy House (without the lawn ten Dis ground) would fetch a rental of more than from £125 to £l5O at the present time. He had been trying to let the honse since August last, and had not yet suoceeded in doing so. Ooes-examined : Mr Reid had instructed bin to let tho house at £l5O, but he had not offered it to anyone. Thiß closed tho oase for the defence, and also the rebutting oase. Mr Hutohison said that whatever might be the effeot of the oovenant in the deed, the mortgage itself was utterly bad. He was afraid that by calling one banking expert, whioh had led to the calling of several others, the examination had been diverted to a rather irrelevant issue. It now appeared that the partioular operations in banking upon whioh they had been examined and cross-examined had referenoe to trading and mercantile speculations, whereas the real point at issue was whether it was a legitimate part of a bank’s opera* tions to take land and houses—in other words, real estate—as a security other than collateral for advances made by it. The Court adjourned at 5 p.m. till 11 a.m. next day.

Saturday, February 18.

The Court sat at 11 a.m. Mr Hutchison was hoard in argument for the defence, and Mr Edwards in reply and ia Bupport of plaintiff’s case, iiis Honor reserved judgment.

Monday, February 20. (Before Hla Honor Mr Justice Riobmond.) Joseph Knighcv. Taniora Love, —Aolion for £2OO damages for trespass and an injunction restraining the defendant from further removing plaintiff's boundary fenoe, both partioß being farmers in the Hutt district. Mr Quick for the plaintiff, Mr C. B. Moriscn for the defendant. In opening the oase, Mr Quiok explained that it was an action for trespass turning on a question of title. His learned friend and himself had agreed to the admission of all the deods, and he thought the only question for discussion and the ca’liug of evidence would be a matter of anoient occupation of over 20 years. The point ia dispute was as to the position of the boundary fence between sections 23 and 27, Hutt, Both sections were originally part of the Tolle* maohe estate, and during the forties plaintiff’s father, Wm. Knight, and other settlers lived thore as tenants from month to month. They were driven off by the Maoris, but returned again. Wm. Knight gradually bought out a number of his fellow settlers, and finally he died in 1867, leaving such of his property as affects this case in trust to his elriest sons, James and Joseph, to be divided between all except two of his children, when the youngest, David, came of age. David attained his majority in September, 1872, and by mutual arrangement the brothers effected a division of the property, David and George becoming proprietors of seotion 27, David’s sharo being that part of it running down the side of the boundary fonoe between it and section 23, which latter section plaintiff bought on Octo. ber Ist from Mr Tollemacbe. Immediately after taking possession the brothers began tho erootion of a new wire boundary fenoe between the sections on tho Udo of a then existing but very dilapidated post and rail fence. At one point where there was a stony declivity tho brothers carried tho line of fence about a chain into Joseph Kuight s seotion, so as to get ovor the difficulty. The original direotion of tho fence, differing from a later survey, is the source of the present trouble. In course of time David Knight sold his portion of seo tlon 27, and it eventually fell into the possession of the defendant, Tanoira Love. There was no dispute until recently about the boundary line. The defendant deoided to put his land throngh the Land Transfer Office, and upon a fresh survey being made for that purpose the surveyors found that there was a divergence from the original boundary line. Unfortunately, plaintiff had constructed a drain (in David Knight’s time) on his side of the fence, and the moving of tho fenca would place that drain on defendant’s side of the fence. Defendant threw down the boundary fenoe on 15th November last in order to enforce his claim, wherefore plaintiff olaimed damages, plus, the cost of replacing the fenoe in its original position. Evidence was given by Joseph Knight, James Knight, Elizabeth Kuight (wife of Joseph Knight), John Eadea and Peter Smith.

Mr Morison, in opening defendant's oase, said there was a ohain of conveyances originating from plaintiff himself aod others to the southern part of seotion 27, and tho boundary on these conveyances oolnoided with the original boundary in the Crown grant. The section pegs were iron pegs, and had been found at all the corners exoept ode, where the hill had slipped and oovered the peg to a depth which male it not worth while to dig out. Upon a survey being made in order to bring the land under the Laud Transfer Aot, the existing fence was found to deviate from the true line, and on the loth November last defendant threw it down and out some firewood on the portion of land he olaimed so as to assert his rights of owner ehip. He contended that he had exercised this aot of ownership within 20 years from the ereotlon of the fence.

Evidenoe was given by Wm. Buck, surveyor, and Jas. McKenzie, Chief Draftsman District Survey Office, after which tho farther hearing of the oase was adjourned nutil Tuesday next, 28th inst.